Battle for the Bench

Posted on Jun 30, 2008

By E.J. Dionne Jr.

If the long conservative era that began with Ronald Reagan’s election is over, will the judges appointed during the right’s ascendancy be able to block, frustrate and undermine the efforts of a new progressive majority?

Consider this analysis from two influential journalists describing Supreme Court justices as “the last hope of the conservative interests in the United States.”

Imagine, they write, that a new liberal approach to the country’s problems “had been overwhelmingly approved both in Congress and at the polling booths,” so “conservative interests resorted to the courts, starting literally thousands of actions to stay the government’s hand.” Of the ensuing fight, they say: “The liberal justices themselves called their conservative colleagues arbitrary and madly unwise. But while the liberals warned, the conservatives laughed. ...”

Yes, we may go back to the future. Those words are from a still-compelling 1938 book called “The 168 Days” by legendary Washington journalists Joseph Alsop and Turner Catledge. They were writing about the conservative Supreme Court that struck down so much of Franklin D. Roosevelt’s New Deal program and the effort by FDR to be given the power to name additional liberal justices to break the court’s conservative majority.

Roosevelt’s reach for expanded executive authority was unwise because he made it easy for his opponents to compare him to Hitler and Stalin. FDR lost the court-packing fight, but eventually got to name justices in the normal way, and conservative judicial dominance ebbed.

The spate of 5-4 conservative decisions during the Supreme Court’s just-ended term should stand as a warning that we may soon revisit the fights of 70 years ago. Yet almost nobody is talking about this danger. To the extent that judges have been a campaign issue in recent elections, the focus has been on a few hot-button issues, notably abortion. After last week’s sharply contested Second Amendment case, perhaps gun rights will join the list.

But the more important question is whether conservative judges will see fit to do exactly what conservative courts did for much of the New Deal era by using a narrow, 19th-century definition of property rights to void progressive economic, environmental and labor regulation.

Many judicial conservatives view the late 1930s as a disaster because it marked the end of their power on the courts. After the court-packing battle, the Supreme Court began to defer to the democratically elected branches of government and their efforts to regulate the economy in the public interest. Property rights were well protected throughout this time, yet government was allowed to set rules on the uses of property that judicial conservatives of the pre-New Deal period viewed as suspect.

A new generation of conservatives wants to bring the old order back under the auspices of what’s called the Constitution in Exile movement. Their driving idea is that the thrust of jurisprudence since the late 1930s voided the “real” Constitution.

As legal scholar Jeffrey Rosen noted in The New Republic, this movement favors “reimposing meaningful limits on federal power that could strike at the core of the regulatory state for the first time since the New Deal.” He wrote that “justices could change the shape of laws governing the environment, workplace health and safety, anti-discrimination, and civil rights, making it difficult for the federal government to address problems for which the public demands a national response.”

It’s not hard to imagine the cases that conservatives would bring against laws passed by a Democratic Congress and signed by a President Barack Obama. Why wouldn’t a movement that has tried to eviscerate wetlands laws and the Endangered Species Act challenge cap-and-trade legislation aimed at dealing with global warming?

If Congress ever passed a “card-check” law to make it easier for unions to organize, those who never much liked the minimum wage or collective bargaining would certainly try to overturn the new labor right in court.

And what would be the legal fate of new regulations on banking called forth by the economic devastation of the subprime mess, or bank bailouts that may be necessary to keep capitalism on track, or mandatory mortgage renegotiations to keep citizens from being thrown out of their homes?

The four conservatives on the Supreme Court, when empowered by the swing vote of Justice Anthony Kennedy, have already shown their willingness to overturn the will of Congress and local legislatures when doing so fits their political philosophy. The same majority could keep conservative ideas in the saddle long after the electorate has decided that they don’t work anymore.